Cash payments to liquor dealers to maintain su􀁹icient quantity of stock doesn't call for sec. 40A(3) disallowance

Facts:

a) Assessee engaged in the business of country liquor had made cash purchases from two parties 'A' and 'P'.

b) Since, the payments for the purchases were exceeding Rs. 20,000, Assessing Officer (AO) disallowed said payments by invoking provisions of section 40A(3).

c) Commissioner (Appeals) confirmed the action of the AO and upheld the disallowance. Aggrieved assessee filed the instant appeal before the tribunal. 

The tribunal held in favour of assessee as under:

1) The primary object of enacting section 40A(3) is two folds, firstly, putting a check on trading transactions with an intent to evade the liability to tax on income earned out of such transaction and, secondly, to inculcate the banking habits amongst the business community.

2) Apparently, this provision is directly related to curbing of the evasion of tax and inculcating the banking habits in business community.

3) In the instant case, assessee was the only authorized dealer in the area for the supply of country liquor to authorized Excise vendors. He was to keep sufficient stock of country liquor as prescribed by the Excise Department and in case stock fell short of the prescribed limit, the department used to impose penalty.

Even 'Quoted Prices' may be accepted for comparability analysis under CUP method

Facts:

The issue before the Tribunal was as under:

Whether the 'quotations' in the form of external CUP and custom data of third party shipping bills, brokers rates, SOPA rates etc., can be considered as the reliable comparable data or not.?

Tribunal held in favour of assessee as under:

1.  Gujarat High Court in case of CIT v. Adani Wilmar Ltd. [2014] 45 taxmann.com 365 (Gujarat) has held that the price publication as long as same are authentic and reliable would be relevant material for the purpose of rule 10D(3)(c).

2.  Even 'Quoted Prices' may be used if they are authentic for comparability analysis in CUP method. For this one may refer to the release of new guidance on cross border commodity transactions by OECD on its Base Erosion and Profit Shi ing (BEPS) plan actions 8 and 10, 2015 Final Reports, wherein there is an addition to Chapter II of the Transfer Pricing Guidelines relating to commodity transactions.

How can NRs escape from higher TDS without furnishing PAN

The existing provision of section 206AA, inter alia, provides that any person who is entitled to receive income on which tax is deductible shall furnish his PAN to the payer, failing which tax shall be deducted at higher rates. Such provision is also applicable for non-residents.

Section 90 provides that non-resident taxpayers (to whom provisions of DTAA are applicable) shall apply provisions of the Income-tax Act or DTAA, whichever is more beneficial. However, due to application of Section 206AA such non-residents are taxed at higher rate of 20% even if tax rates under treaty are more beneficial.

The Finance Minister in his budget Speech had proposed to provide that on furnishing of alternative documents instead of PAN, the higher rate of TDS under Section 206AA will not apply to non-residents. Thus, in order to reduce compliance burden for the non-residents the Finance Act, 2016 provided exemption from applicability of Section 206AA in case of nonresidents subject to conditions as may be prescribed.

Now the CBDT has notified new Rule 37BC to prescribe such conditions. It has been provided that the provisions of Section 206AA shall not apply even if the nonresident payee does not have PAN subject to satisfaction of following conditions:

CLB ends family feud by dismissing oppression plea filed by mother against her three daughters

Facts:

a) The petitioner (mother) alleged acts of oppression and mismanagement in the a airs of the company by her 3 daughters.

b)  The relief was sought on various matters such as: - To declare the illegal board meetings

- Removal of director from the directorship of the Company - To declare all illegal transfers of shares

c)  Disposing the petition the HC directed to constitute an adhoc board with the mother and her three daughters for managing day-to-day a airs of the company and to carry out the statutory obligations under the Act.

No TCS if cash receipts don’t exceed Rs 2 lakhs even if consideration exceeds Rs 2 lakhs: CBDT

TCS is to be collected by the seller from the buyer on sale of specified category of goods at rates in force. Initially, only specified items (such as alcoholic liquor for human consumption, tendu leaves, scrap, mineral being coal or lignite or iron ore, etc.) were within the TCS net. Subsequently, the Finance Act, 2012 provided for collection of TCS on sale of bullion and jewellery where the sale consideration received in cash–

a) for bullion, exceed Rs 2,00,000; or

b) for jewellery, exceed Rs 5,00,000.

The Finance Act, 2016 amended Section 206C to provide that seller is also required to collect TCS on sale of any goods (other than bullion or jewellery) or services where the sale consideration received in cash exceeds Rs 2,00,000.

RBI approved royalty rate has only persuasive value, it isn't conclusive to determine ALP

The issue before the Delhi ITAT was as under:

Whether rate of Royalty/FTS approved by RBI is always at ALP?

The Delhi ITAT held as under:

1) The jurisdictional High Court in case of CIT v. Nestle India Ltd. [2011] 11 taxmann.com 106 made following observation:

‘The Tribunal is not correct in observing that since the permission is given by the RBI, the reasonableness and genuineness of the expenditure could not have been gone into by the AO. The purpose for which such permission is given by the RBI is totally di erent. The RBI is only concerned with the foreign exchange and, therefore, would look into the matter from that point of view. The RBI, at the time of giving such permission would not keep in mind the provisions of the IT Act and that is the function of the IT authorities and, therefore, they can validly go into such an issue'

2) It is explicitly clear from the enunciation of law by the Delhi High Court that the grant of permission by the RBI to payment of royalty is not sacrosanct for the purposes of the Act and, can be examined by the Assessing O icer to ascertain its excessiveness.

Practice of builders to Copy Paste same arbitrary clauses in all agreements isn't anti-competitive

Competition Act: Mere inclusion of common arbitrary clauses in the contract for sale of residential flats by builders couldn’t be said to be anti-competitive

In the absence of any evidence of meeting of minds between any two or more developers of real estate with an intention of causing an appreciable adverse effect on competition, there could be no violation of Section 3 as was complained/ informed of by the petitioner/informer. Facts:

a) The petitioner alleged that real estate developers have an understanding amongst them whereby they compel the purchasers of real estate to sign one sided flat buyer’s agreement containing arbitrary clauses which are exploitative of buyer

b) The CCI passed an order under Section 26(1) directing DG to investigate the conduct of residential apartment complex builders and reported that certain practices are being commonly carried on by the developers by way of tacit agreement which caused implications for consumers and resultantly determining the final prices of apartments in contravention of Section 3(3)(a) of the Competition Act

c) The CCI differed from the findings of the DG on issue of contravention of provisions of Sections 3(3)(a) & (b) of the Competition Act and held that sufficient evidence is not available on record which warrants a finding of contravention of the provisions of the Act and accordingly closed the matter. 

On writ plea, the High Court held as under:

Payment made to Automobile dealers for servicing of vehicles under warranty would attract sec. 194C TDS

Facts:

1) The assessee-company, manufacturing and selling vehicles, was charging customers for services in nature of repair and maintenance of vehicles to be undertaken on reaching different milestones.

2) Under manufacturer-dealer contract, assessee's authorised dealers were obliged to provide such services to vehicles that satisfied conditions of warranty (qua services), against service coupons issued by assessee to customers.

3) The assessee allowed payment/credit to authorised dealers on presentation of service coupons received by them from vehicle owners on providing services. The Assessing Officer disallowed such payments made to dealers for non-deduction of tax at source under section 194C.

The ITAT held as under:

Job-work transactions under model GST law

In today's scenario, where the demand for goods and services is increasing at a rapid pace, a large number of industries as a part of their survival strategy are dependent on outside support for completing their manufacturing activities. Such activities are being undertaken by many small and medium scale industries to complete the process on raw material/semi-finished goods as desired by principal manufacturer and is known as "Job-Work". Job-work is otherwise also understood as the processing or working on goods supplied by the principal (i.e. the manufacturer) so as to complete a part or whole of the process. The principal usually sends the raw material or semi-finished goods or components which are processed by the job worker resulting in a further processed or finished product. The manufacturer may also send finished product to a job worker for assembling/packing. The term job-work has various synonyms in various industries – "job-work" or "sub-contracting" in engineering industry, "processing" in chemical or textile industry and "a loan licensee" in pharmaceutical industry, "contract manufacturing" in FMGC industry.

This being the commercial aspects of the entire transaction, the Indirect tax aspects broadly revolves around Central Excise Duty, Service tax and Value Added Tax/Central Sales Tax. The taxable events for all three taxes are different i.e. for Central Excise duty it is upon manufacture of goods, for Service tax it is rendition of service and for Value Added Tax/Central Sales Tax it is sale of goods.

Govt. allows 100% FDI in e-commerce, aviation and defense

With the objective of providing major impetus to employment and job creation in India, the Government has brought major FDI policy reforms in a number of sectors viz. Defence, Construction Development, Insurance, Pension Sector, Broadcasting Sector, Single Brand Retail Trading, Manufacturing Sector, LLPs, Civil Aviation, Credit Information Companies, Satellites- establishment/operation and Asset Reconstruction Companies. These amendments seek to further simplify the regulations governing FDI in the country and make India an attractive destination for foreign investors. The Key highlights of amended FDI policy are as follows:

1. Foreign Investment in Defence Sector up to 100%: Foreign investment beyond 49 % has now been permitted through government approval route, in cases resulting in access to modern technology in the country or for other reasons to be recorded. The condition of access to ‘state-of-art’ technology in the country has been done away with. 

2. FDI in Civil Aviation sector: Govt. has allowed 100% FDI in aviation sector under automatic route in Greenfield Projects and 74% FDI in Brownfield Projects under automatic route.

3. Changes for promoting Food Products manufactured/produced in India: It has now been decided to permit 100% FDI under government approval route for trading, including through e-commerce, in respect of food products manufactured or produced in India. 

4. Private Sector Agencies: The extant policy permits 49% FDI under government approval route in Private Security Agencies. FDI up to 49% has now been permitted under automatic route in this sector and FDI beyond 49% and up to 74% would be permitted with government approval route.